SURROGACY NORMS TO BE REVISED Having emerged as the hottest destination for surrogacy, it is but natural for India to take the lead in evolving a law that safeguards the interests of all the parties concerned, including the child born through assisted reproductive technology (ART). There is no precedent to the proposal under consideration that foreigners or NRIs seeking to rent a womb in India be made to give evidence that their country of residence recognized surrogacy and would give citizenship to a child born through agreement. Both conditions are reasonable as they are designed to deal with the legal uncertainties thrown up by a couple of surrogacy cases that did not pan out in the agreed manner. In the Manji Yamada case, the baby was embroiled in litigation as the commissioning Japanese parents had divorced by the time it was born in India. And in the subsequent case involving German parents, the twins found themselves in a no-man’s-land as their country did not recognize surrogacy as a means of parenthood. The bill drafted by an ICMR expert committee is in keeping with the recommendations made by the Law Commission in August 2009. There is no way the surrogacy agreements will be enforceable unless the commissioning parents are in a position to take the child back to their country and it is accorded citizenship, which it would have automatically received had it been born to them in the natural course. Correspondingly, the proposed law will recognise the surrogate child as the legitimate child of the commissioning parents, without there being any need for adoption or even declaration of guardianship. Such an enabling provision cannothowever be enforced unilaterally. So, the government cannot just go by the word of the commissioning parents. The safeguards of the child’s interests need to have official imprimatur in the form of certificates from the foreign government concerned. As a corollary, the legislation also provides that the birth certificate of the surrogate child given by the Indian government will have names of only the commissioning parents. In a bid to prevent abuse of the child, the government is also considering provisions stipulating that at least one of the commissioning parents needs to be a donor of the sperm or the egg. This is based on the assumption that a biological link between the commissioning parents and the surrogate child would reduce chances of abuse. Under the scheme of the proposed law, surrogacy cannot be misused for sex selection and it will be governed by the Medical Termination of Pregnancy Act to prevent unauthorized abortions. It also seeks to provide a measure of privacy to the commissioning and surrogate parents

AGE CAP FOR HC JUDGES TO BE REVISED?

The law ministry has dusted out an old proposal and given it a major modification to suggest to the government an amendment to the Constitution to put the retirement age of high court judges on a par with that of the Supreme Court judges -- 65 years.

The fresh proposal has scissored out a part of the earlier proposal, which suggested increasing the retirement age of Supreme Court judges proportionally, that is, from the present 65 years to 68 years.

But, any increase in the retirement age of the HC judges would require an amendment to Article 217 of the Constitution. So, this proposal would require support from most of the political parties before being brought in as a Constitutional Amendment Bill.

The move aims to end the embarrassing situation faced by the Chief Justice of India and the collegium of judges in the face of strong lobbying by high court judges and chief justices for elevation to the SC prior to their retirement at the age of 62 years. Appointment of an HC judge or a CJ to the SC means another three years on the Bench.

Secondly, the law ministry headed by M Veerappa Moily feels that once the retirement age of HC judges is increased and put on a par with that of the SC judges, it would eliminate the lure for the extra three years and along with it the rush for appointment to the SC.

At present as against a sanctioned strength of 895, there are around 650 HC judges and at any given time there are at least 20 to 30 judges aspiring to fill two to three vacancies in the Supreme Court.

In the last three years, several judges appointed to the Supreme Court had just three or four years of tenure before attaining the age of superannuation at 65 years. This means, the HC judges or chief justices were elevated to the SC just prior to retiring at the age of 62 years. This recent phenomenon has made the law ministry to dust out an old proposal to increase the retirement age of HC judges from 62 to 65 years.

Nearly seven years ago, the Justice Venkatachaliah-headed Committee to Review the Working of the Constitution had suggested increasing the retirement age of Supreme Court judges to 68 years and that of HC judges to 65 years.

NALSA COMING THE RURAL LEGAL ENLIGHTENMENT WAY

For long, villagers have been at the wrong ends of justice being unaware of the functioning of courts and also sent on a merry-go-round while trying to procure a document -- be it a ration card, birth or caste certificate -- from panchayat or block offices.

No more, for the National Legal Services Authority (NALSA) is forging ahead with its plan to set up legal aid clinics (LACs) of permanent nature at the taluka level whose function would be akin to that of primary health centres (PHCs) and will meet the basic legal requirements of villagers.

In fact, these LACs, to be manned for 12 hours a day -- from 8 in the morning to 8 in the evening -- by a trained lawyer deputed by the district legal service authority concerned, will function in close proximity to the PHCs.

Panchayats and block offices have been requested to give some office space to the LACs to enable villagers to seek unhindered guidance from the deputed lawyer to help solve their disputes and other requirements like writing an application for a ration card, Antyodaya Anna Yojana card (BPL card) etc, says NALSA member-secretary U Sarath Chandra.

At present there is one PHC covering about 30,000 (20,000 in hilly, desert and difficult terrains) or more population. Many rural dispensaries have been upgraded to create these PHCs. Each PHC has one medical officer, two health assistants (one male and one female), and health workers and supporting staff.

Chandra says the basic motto of NALSA, as defined by its executive chairman and Supreme Court judge Altamas Kabir, is to deliver justice at the rural folk’s doorstep and these LACs would help make people confident about seeking from the authorities what is their due.

The basic purpose of the LACs would be to encourage villagers to settle their inter-personal disputes amicably and not to litigate, he says. As the rural folk have a a lot of inhibition to get in touch with babus in the panchayat and block offices, the lawyer manning the LAC would also help them write applications and suggest ways and means to get the required documents from these offices.

And the free legal advise would be available to one and all, irrespective of their financial status. In the urban areas, the free legal aid under the NALSA and State Legal Aid Authority (SALSA) is limited only to poor people.

"We presume that most of the villagers are poor or handicapped by distance to get proper legal advice. So LACs have been advised to cater to all segments of population in the villages," Chandra says.

But, finances have been a real difficulty in making LACs operational on a daily basis, says Chandra. So, to start with, the lawyer deputed to hold LAC would go to the taluka office once a week. Gradually the frequency would be increased, he adds

QUESTION PAPER LEAKED! SWITCH TO RE-EXAMINATION

At a time when leakage of question papers continue to mar examinations, the Supreme Court has ruled that re-examination is a must in such situations to keep the sanctity of the selection process intact.

An examination gets botched up not only when there is largescale copying or leakage of the entire question paper. "Even a minute leakage of question paper would be sufficient to besmirch the written test," said a Bench comprising Justices Aftab Alam and K S Radhakrishnan in a recent judgment.

And it firmly ruled that the only option available with the examination authorities was "to go for a re-test so as to achieve the utlimate object of fair selection", it said.

The apex court was dealing with a petition filed by the chairman of the All Indian Railway Recruitment Board challenging a judgment of the Andhra Pradesh High Court, which had faulted the Board’s decision to hold a re-test for recruitment of candidates for Group-D posts at Secunderabad in 2003 after allegations of various irregularities, including leakage of question papers.

Pursuant to the advertisement, over 10 lakh persons applied but only 5.86 lakh candidates were called to appear for the written test. From them, 2,690 were selected to appear in the physical efficiency test (PET) in February 2004. But, several complaints were received alleging that leakage of question papers and that the candidates indulged in mass copying in some centres.

An inquiry by the vigilance department found prima facie evidence of leakage of question papers, mass copying and impersonation of candidates in the written test. On the basis of the vigilance report, the Board ordered a fresh written test for the candidates.

Those who figured in the 2,690 selected candidates moved the HC saying the re-test should be confined to them. The HC had found merit in their argument and said the "decision taken to conduct a re-test was arbitrary, illegal and unreasonable."

Allowing the appeal by the Board, the apex court Bench said: "The HC was in error in holding that the materials available relating to leakage of question papers was limited and had no reasonable nexus to the alleged largescale irregularity." It upheld the Board’s decision to conduct the second written test.

DOMESTIC VIOLENCE ACT NOT GENDER SPECIFIC- GOI

The UPA government says the Domestic Violence Act enacted with a view to protect women can also be used to prosecute women.

Backing the recent decision of some courts in Delhi to invoke the civil law against women, a women and child development ministry’s affidavit in the Delhi high court says that “the main purpose of the act is to protect women from domestic violence but not solely protect them from males... right of the victim against domestic violence can’t be guided by the gender of the perpetrator.’’

The Centre’s stand came in response to a petition by a widow questioning the invocation of the act against women by a few courts in the capital. Varsha Kapoor through her lawyer Arvind Jain had urged the court to strike down a section in the act that allowed courts to sanction prosecution of women.

Justifying the stand of the government, the affidavit said, “The main purpose of society and lawmaker is to provide certain protection to women so that they can live with honour... the legislature never wanted to exempt women from prosecution... if any crime is committed by any woman in that case, she is liable to be prosecuted irrespective of the gender.’’

In her petition, Kapoor, who has been booked under the Domestic Violence Act on the complaint filed by her estranged daughter-in-law, has also challenged a lower court’s order against her.

“The DV Act is a benevolent piece of legislation aimed to provide effective protection of rights of women under the Constitution who are victims of violence of any kind within the family,’’ the petition argued, pointing out that such a law can’t be allowed to be misused against women. Saying the provision has generated a lot of confusion due to the conflicting verdicts of several high courts, Jain argued that the high court needs to clarify the law so that the same can be applied by lower courts in the capital. “The above stated conflicting, confusing, absurd and unconstitutional provisions have created such a mess and chaos that interests of justice/ends of justice are not available to the petitioner to rescue her basic dignity and honour,’’ the petition said. The high court will now consider the petition when it comes up for hearing later this month.

KHAP PANCHAYATS, ARE THEY BIGGER THAN THE LAW?

It has been already decided in a 1945 judgement (given below) that same gotra marriages are legal. 

The case of 'Madhavrao vs Raghavendrarao'

The case in question was 'Madhavrao vs Raghavendrarao', which involved a Deshastha Brahmin couple.

The two-judge bench included Harilal Kania, the first chief justice of independent India, and P B Gajendragadkar, who became the chief justice of India in the 1960’s.

KHAP PANCHES IN A VILLAGE, HARYANA

Following a series of hearings on evidence to prove a custom, the bench came to the conclusion that a matrimonial alliance between a man and woman belonging to same gotra was valid.

The court clarified that there was a need for the society to modify the tradition of denouncing such marriages to keep up with the changing times. It said, "Courts have to construe the texts of Hindu law in the light of the explanations given by recognized commentators. But it must always be remembered that since the said commentaries were written, several centuries have passed by and during this long period the Hindu mode of life has not remained still or static.

“Notions of good social behavior and the general ideology of the Hindu society have been changing. The custom as to marriages between persons of the same gotra in this case is an eloquent instance in point."

The tyranny in the name of honor

The legal heads feel there is a need to educate people about same gotra marriages and clear the misconception of those who staunchly oppose them.

The concept of same gotra marriages is so deeply ingrained in the minds of the communities that they thoughtlessly oppose such alliances and do not hesitate to kill the offenders ruthlessly or socially ostracize them in the name of honor.

Support of politicians

In a bid to woo the Jat community, which is at the centre of the ongoing gotra controversy, Naveen Jindal, the U.S.-educated Congress youth leader and Om Prakash Chautala, the president of the Indian National Lok Dal (INLD) are openly lending support to the self-styled khap panchayats .

Chautala stressed that his party was against violence and wanted those guilty for killings to be brought under law. Nevertheless, he expressed solidarity with the panchayats demanding a ban on same gotra marriages.

He stated, "My party is in favor of an amendment to the Hindu Marriage Act for incorporating a clause into it banning intra-gotra marriages.”

CONTEMPT OF COURT IS REALLY SERIOUS

Facing criminal contempt of court proceedings? Apologize unconditionally and as swiftly as possible. Dithering is fraught with the risk of landing in jail, the Supreme Court has warned.

"An apology in a contempt proceeding must be offered at the earliest possible opportunity," said a Bench comprising Justices G S Singhvi and A K Ganguly in an order that toughens already stringent laws dealing with criminal contempt of court.

This is a higher degree of offence than civil contempt and is invoked against those who brazenly seek to slander a court's reputation.

However, Justices Singhvi and Ganguly stressed that the courts needed to exercise restraint when using the power to punish for contempt. "Contempt power has to be exercised with utmost caution and in appropriate cases," they said, underlining this was why the contempt power has not been vested in lower courts.

The Bench rejected a delayed apology by one Ranveer Yadav, who was sentenced to two months imprisonment and a fine of Rs 2,000 for creating a ruckus in a Khagaria court in Bihar forcing the trial judge to leave the court room.

His apology came long after trying to justify his misbehaviour in the court on the ground that other accused in the case had provoked him. His misconduct was aggravated by his earlier misdemeanour of being discourteous to public prosecutors coupled with his flaunting of political connection and criminal antecedents.

Rejecting his delayed apology, the Bench said: "A belated apology hardly shows the contriteness which is the essence of the purging of a contempt. A person who offers a belated apology runs the risk that it may not be accepted. Apart from belated apology, in many cases such apology is not accepted unless it is bonafide." Justice Ganguly, writing the judgment for the Bench, said: "When contempt takes place on the face of the court, people's faith in the administration of justice receives a severe jolt and precious judicial time is wasted."

 Terming Yadav's act as a clear case of criminal contempt on the face of the court, the Bench said the court reserved the right to reject any apology if it suspected it is bona fide.

"It is not incumbent upon the court to accept the apology as soon as it is offered. Before an apology can be accepted, the court must find out that it is bona fide and it is to the satisfaction of the court," Justice Ganguly said.

"However, a court cannot reject an apology just because it is qualified and conditional provided it is bona fide," he added.

PATENTING! NOT SO EASY

HIGHLIGHTS OF A CHENNAI PATENT OFFICE CASE

1. DNP+, a support group of HIV/AIDS patients challenged the patents given to  Roche, a pharma company for a drug, Valganciclovir. The drug is primarily used as treatment and prevention of an infection caused by cytomegalovirus (CMV) in organ transplant patients, a highly lucrative market which Roche has sought to defend by patenting the medicine. But CMV also affects people living with HIV, and if left untreated, can cause blindness and death.

2. The patent enabled the Company to charge exorbitant prices for the drug making it unaffordable for the most of the patients.

3. They alleged that the drug lacked novelty, inventive step (bases for granting of patent) and that it was a new form of an old drug.

4. The Indian Patent Office in Chennai set aside the patent granted to the Company.

CJI SITES ''GOOD REASONS'' FOR RECLUSION FROM MEDI A

If you are confused about the reasons  the new CJI of India, S.H. Kapadia must be having for being away from media, you are most suitable reader of this article.

It was a little odd for him given the precedents of the media having free-wheeling interactions with previous CJIs and eliciting their views ion issues as diverse as 'necessity of death sentence', the Ruchika molestation case, corruption in judiciary, row over justice Dinakaran and khap panchayats abetted honour killings. 

He said, ''When a Chief Justice interacts with media, there are bound be questions on burning issues in the society and the cases in courts relating to the famous and infamous. As a matter of rule, I am against a Chief Justice of India giving his views on either social issues or pending cases''. He felt the CJI's comments on these issues could prove deleterious to an impartial judicial decision.

"If the CJI gives his views on a burning issue, which on most occasions land up in judiciary for adjudication, or on a pending case, then it is bound to affect the merits of the cases. I do not want that to happen. Because these cases may reach the Supreme Court one day in the form of an appeal or a writ petition'', he said.

Concluding the matter, he said, '' I speak through my judgements''.

PUBLIC INTEREST LITIGATION, BE CAREFUL!

Hours after assuming the office of Chief Justice of India, Justice S H Kapadia today spoke his mind for conducting the business of the Supreme Court by saying that any attempt to push frivolous PILs (Public Interest Litigation) would be dealt with sternly.

"Huge cost will be imposed for filing frivolous PILs," Justice Kapadia, who was heading a three-judge Bench on the first day of his office as CJI, said during the hearing of one such (public interest litigation) PIL. Moreover, he said that the fine money would be used to develop the infrastructure of the court.

NARCO ANALYSIS NEEDS SUSPECT'S CONSENT

The Supreme Court ruling today rejecting the legality of narcoanalysis, brain mapping and polygraph tests if they are done without the consent of suspects, could bring reprieve for Satyam Computer Services founder B Ramalinga Raju and two of his associates.

A bench headed by Chief Justice K G Balakrishnan said no individual could be forced and subjected to such techniques involuntarily. Raju, and his associates — former managing director B Rama Raju and former chief financial officer Vadlamani Srinivas — who are being investigated by the Central Bureau of Investigation (CBI) had not given their consent for the tests.

The CBI had earlier filed a petition in a lower court to conduct polygraph and brain mapping (F300 testing) tests on the accused. The investigators had pleaded before the court that scientific tests were necessary to aid the investigation.

Last month, a two-member bench of the Andhra Pradesh High Court had delivered a split verdict on a petition filed by Ramalinga Raju challenging a local court’s order that he and two other accused be subjected to a polygraph (lie detection) test and brain mapping (F-300).

Following the split verdict, it was decided that the case be presented before a third judge. It allowed the petition but said that the tests should be done by forensic and medical experts in presence of the defence lawyers at the Andhra Pradesh Forensic Laboratory at Hyderabad.

It further set conditions that any self-incriminating statement, if made by the accused, could not be used or relied upon by the prosecution. It also said that a full medical and effectual narration of the incident must be recorded.

Raju’s counsel told the court that he was suffering from cardiac problems and blood pressure and the tests would put him under undue stress. “We will wait for the apex court order and then think of the options available,” said CBI prosecutor Bhalla Ravindranath.

JUSTICE S.H. KAPADIA

THE SHIFTS IN JUDICIARY

The present incumbent Chief Justice K G Balakrishnan will superannuate on May 11, after remaining the chief of the apex court for more than two years.

Justice S.H. Kapadia the senior most judge of the Supreme Court was on Friday appointed as the next Chief Justice of India. Justice Kapadia’s Warrant of Appointment signed by President Pratibha Patil has been sent to the Supreme Court registry, official sources said. Justice Kapadia, 62, will become the 38th CJI on May 12 when the incumbent CJI K.G. Balakrishnan retires. Justice Kapadia would remain in office till September 29, 2012.  Justice Kapadia was part of the Constitution Bench that in 2007 declared that laws placed under the protective umbrella of the Ninth Schedule of the Constitution were open to judicial review. He was also on the Bench that decided I-T case in favour of RJD chief Lalu Prasad. Though he has been associated with many historic judgments, he is considered to be an expert in tax laws. He has a keen interest in economics, public finance, theoretical physics and Hindu and Buddhist philosophies. He also had been in the midst of controversies when it was alleged last year that he was hearing matters in which he had conflict of interest. He assumes the office at a time when the judiciary is faced with problems, such as corruption, lack of transparency, failure of in-house mechanism in dealing with deviant judges, appointment and transfer of judges and backlog of cases.

Justice Balakrishnan is tipped to be the next chairperson of the National Human Rights Commission which is lying vacant for the past one year. Other changes Justice Mishra, CJ of Jharkhand High Court, Justice H L Gokhale, CJ of Madras HC, and Justice A R Dave, CJ of Bombay HC on Friday took oath as  judges of the Supreme Court. With the appointment of these three judges, the strength of the Supreme Court has gone up to 30 out of the sanctioned strength of 31. Justice Mishra is the fourth woman judge to be elevated to the Supreme Court after Justices Fatima Beevi, Sujata Manohar and Ruma Pal.

GOI ON SC VERDICT FOR AMBANIS

Welcoming the Supreme Court ruling in the gas dispute between Mukesh Ambani-led Reliance Industries and Anil Ambani-led Reliance Natural Resources Ltd (RNRL), Oil Minister Murli Deora said that the government stand that gas belongs to the nation has been vindicated.

Buzz up!"SC verdict upholds the fact that gas belongs to the government and the people of the country and that is what we have been saying," the minister told a news agency. "I welcome the verdict. No matter what campaign one ran against the government, the nation is supreme," he added. The minister had earlier drawn criticism for interfering in the dispute between the Ambani brothers. During the three and half year long legal battle, the government had also moved the Supreme Court to assert its power and sovereign right over gas pricing and utilisation.

Anil Ambani had also accused Deora and his ministry of favouring his elder brother in the dispute.

The Supreme Court on Friday, May 7 ruled that since the gas like any other natural resource comes under the government, the pricing will be based on what is approved by it. This ruling came in favour of Mukesh Ambani. It was a huge set back for Anil Ambani as the apex court held that the family MoU signed in 2005 was not legally binding as the shareholders had no idea on its contents.